Hardware maintenance agreement
This agreement is made the ……………… day of ………………… 2003 by and between Eastern Computers Services Limited, a Company incorporated under Companies Act 1956 (India) and having its administrative office at 54, Shakespeare Sarani , Kolkata 700 064 (herein after called “the service provider”, the expression unless repugnant to the context or specifically exempted shall include its successors and permitted assigns of the first part) and National Silk Foundation, a Society registered under the Societies Registration Act (Act XXI of 1860) having its administrative office at Bungalow No.1, Satellite Complex, Ashram Road, Ahmedabad 380015 (herein after called “the customer”, the expression unless repugnant to the context or specifically exempted shall include its successors and permitted assigns) of the second part.
The service provider and customer are together called parties.
The service provider has agreed to maintain the customer’s computer equipment hereinafter described upon the terms and conditions hereinafter contained.
Now it is hereby agreed as follows:
In this agreement, unless the context otherwise demands, the following expressions shall have the following meanings:
(i) ‘The Equipment’ shall mean the computer equipment mentioned in the Schedule and the Supplementary Equipment and such additions and changes thereto as shall from time to time be agreed in writing between the parties.
(ii) ‘The Supplementary Equipment’ shall have the meaning attributed thereto in Clause 3(iii).
(iii) ‘The Location’ shall mean the customer’s computer room in which the Equipment has been installed as specified in the Schedule.
(iv) ‘The Commencement Date’ shall mean the date on which this agreement becomes operational as specified in the Schedule.
(v) ‘The Initial Period’ shall mean the initial period of this agreement as specified in the Schedule.
(vi) ‘The Scheduled Maintenance’ shall mean the maintenance services to be provided by the service provider in accordance with Clause 2.
(vii) ‘The Emergency Maintenance Services’ shall mean the emergency maintenance services to be provided by the Service provider in accordance with Clause 4.
(viii) ‘The Maintenance Services’ shall mean the Scheduled Maintenance Services and the Emergency Maintenance Services.
(ix) ‘The Maintenance Charge’ shall mean the periodic charge for the Scheduled Maintenance Services mentioned in the Schedule as varied from time to time be agreed in writing between the parties.
(x) ‘Maintenance Hours’ shall mean the hours between 9.00 am and 6.00 pm each day excluding Sundays and public holidays.
2. Scheduled maintenance Services
As long as this agreement remains valid the service provider hereby agrees to provide the following maintenance services with respect to the Equipment:
(i) Preventive maintenance. The service provider shall visit the Location every 3 months to check the functions of the Equipment and make such adjustments as shall be necessary to keep the Equipment in good working condition. service provider shall make such visits only during Maintenance Hours by prior appointment with the customer. If it is convenient in the opinion of the service provider to do so, such maintenance may be carried out at the same time as corrective maintenance.
(ii) Corrective maintenance. Upon receiving information from the customer that the Equipment has failed or is not functioning properly the service provider shall during Maintenance Hours carry out such repairs and/or change the defective parts of the Equipment, as may be necessary, to restore the Equipment to its proper working condition.
(iii) Response time. Upon receiving a request for corrective maintenance the service provider shall endeavour its best to send a qualified service engineer to the Location within 6 hours.
(i) In consideration of the Scheduled Maintenance Services the customer shall make payment of the Maintenance Charge periodically in advance as specified in the Schedule. The Maintenance Charge shall be paid with out prior demand. All payments shall be made in the manner specified in the Schedule.
(ii) Any charges payable by the customer here under in addition to the Maintenance Charge shall be paid within 30 days from receiving the service provider’s invoice.
(iii) When it becomes known to the service provider that any equipment at the Location which is not included in the Equipment and in respect of which the customer requests any maintenance Services (‘Supplementary Equipment’) the service provider shall provide the Maintenance Services in respect of the supplementary Equipment in the same way as in respect of the Equipment and charge for it in accordance with the rate set out in the schedule.
(iv) The service provider shall at any time after the expiry of the Initial Period increase the Maintenance Charges by giving to the customer not less than 60 day’s prior written notice. Where such notice is given, the customer shall have the right to terminate this Agreement as from the date on which such notice expires by giving to the service provider written notice of termination not less than 30 days’ before such date.
(v) The Price and any extra charges payable under this agreement are exclusive of taxes which shall be paid by the customer at the rate and in the manner for the time being prescribed by laws of the Republic of India.
(vi) If the customer defaults in making any payment under this agreement, upon the expiry of 7 days from the date on which payment becomes due, the service provider may charge interest on such sum on a day to day basis from the last date for payment thereof to the date of actual payment, both dates inclusive, at the rate of …… per cent from time to time in force compounded half yearly. The customer shall pay such interest on demand from the service provider. This is without prejudice to the service provider’s other rights and remedies.
4. Emergency Maintenance Services
Apart from the Scheduled Maintenance Services the service provider shall provide during the subsistence of this agreement emergency corrective maintenance service outside Maintenance Hours as far as practicable after the receiving a request made by the customer during at the Service provider’s standard scale of charges for such service from time to time in force. Such charges shall operate from the first arrival of the service provider’s engineer at the Location to his final departure there from.
(i) The Maintenance Services do not include any maintenance of the Equipment, which is necessitated as a result of any cause other than fair wear and tear or the service provider’s negligence or default including without limitation:
(a) Failure or fluctuation of electric power, air conditioning, humidity control or other environmental conditions; or
(b) Accident, transportation, neglect, misuse, or default of the customer, its employees or agents or any third party; or
(c) Any defect in any attachments or associated equipment which do not form part of the Equipment; or
(d) Act of God, fire, flood, war, act, of violence, or any other similar occurrence; or
(e) Any attempt by any person other than the service provider’s personnel to repair or maintain the Equipment;
(ii) The service provider shall at the request and expense of the customer rectify or replace any part of the Equipment which has failed due to a cause other than fair wear and tear or the service provider’s negligence or default. In such cases the work shall commence only after the customer accepts the written quotation of the service provider.
(iii) The Maintenance Services shall not include the following:
(a) service at any site other than at the Location specified in the schedule;
(b) repair of tapes, disk, printing cartridges or other consumable supplies;
(c) repair or support of the operating system of any computer;
(d) repair or support of any electrical work external to the Equipment;
(e) maintenance of any attachments or associated equipment which do not form part of the Equipment; or
(f) retrieval of any data or programs lost or destroyed as a result of any computer virus attack, breakdown of or fault in the Equipment.
(i) The service provider shall reserve the right to replace the whole of the Equipment or any part or parts thereof which may be defective.
(ii) The service provider while making any such replacement shall not remove the Equipment or any part or parts thereof until the Replacement Equipment has been made ready for installation.
(iii) The service provider shall at the time of any such replacement intimate the customer in writing of the serial numbers of the Replacement Equipment.
(iv) If the Replacement Equipment is not identical in all respects to the replaced equipment then this fact shall be communicated by the service provider to the customer in writing at the time of replacement.
(v) Within 10 days of being communicated of replacement of non-identical equipment the customer shall have the right to direct that the Replacement Equipment or any part thereof be removed and either the Equipment be put back or other equipment identical to the Equipment be installed and the service provider shall comply with such direction immediately.
(vi) The Replacement Equipment shall become the property of the owner of the Equipment. The Equipment or any part or parts thereof removed shall become the property of the service provider subject to the condition that the owner of the Equipment shall be the owner of equipment identical in value and performance to the Equipment.
(vii) The provisions of this agreement shall apply to all replacements and renewals of any part or parts of the Equipment made by the service provider during the subsistence of this agreement.
7. Service visits outside the Maintenance Services
The service provider shall make an additional charge, in accordance with its standard scale of charges from time in force, for service visits made at the request of the customer by reason of any defect in the Equipment due to causes not covered by the Maintenance Services.
This agreement shall commence on the Commencement Date, shall continue for the Initial Period and shall remain in force thereafter until terminated by either party giving to the other not less than 6 months’ written notice of termination issued on the last day of the Initial period or at any time thereafter but shall be subject to earlier termination as provided elsewhere in this agreement.
9. Customer’s obligations
During the subsistence of this agreement the customer shall:
(i) Make sure that appropriate environmental conditions are maintained for the Equipment and shall maintain in good condition the accommodation of the Equipment, the cables, wirings and fittings associated therewith and the electricity supply thereto.
(ii) Not make any modification to the Equipment without the service provider’s prior written consent.
(iii) Operate the Equipment in a proper and prudent manner according to the manufacturer’s operating instructions and ensure that only competent trained employees are permitted to operate the Equipment.
(iv) Not make any attempt to adjust, repair or maintain the Equipment and shall not direct, permit or authorize anyone other than the service provider to carry out any adjustments, repairs or maintenance of the Equipment.
(v) Use on the Equipment only such spare parts as the service provider shall recommend in writing.
(vi) Not remove the Equipment from the Location without the service provider’s prior written consent.
(vii) Not use in conjunction with the Equipment any accessory, attachment or additional equipment other than that which has been supplied by or approved in writing by the service provider.
(viii) Provide the service provider with complete and safe access to the Equipment for the purposes of this agreement.
(ix) Provide sufficient working space around the Equipment for the use of the service provider’s personnel and shall make available such reasonable facilities as may be requested from time to time by the service provider for storing safely the test equipment and spare parts.
(x) Promptly inform the service provider when the Equipment needs maintenance or is not working satisfactorily. Customer failure to intimate the service provider any failure or malfunctioning within 2 months of its occurrence shall free the service provider from all obligations to investigate or correct such failure or malfunctioning.
(xi) Subject to Clause 12(ii), provide the service provider such programs, operating manuals and information as may be necessary to enable the service provider to perform its obligation hereunder.
(xii) Make available to the service provider free of cost all facilities and services reasonably required by the service provider to perform the Maintenance Services including without limitation computer runs, print-outs, typing and photocopying.
10. Spare parts
(i) The customer shall purchase from the service provider such spare parts as the service provider shall specify which shall be supplied at the service provider’s list prices from time to time in force.
(ii) The service provider shall not be liable for any delay in performing its obligations hereunder if any of the specified spare parts are not available otherwise than due to the default of the service provider.
(i) Not with standing anything else contained herein, this agreement may be terminated:
(a) by the service provider forthwith on giving notice in writing to the customer incase the customer makes any default to pay any sum due under the terms of this Agreement otherwise than as a consequence of any default on the part of the service provider and such sum remains unpaid for 30 days after written notice from the service provider that such sum has not been paid; or
(b) by the customer forthwith on giving notice in writing to the service provider if the Equipment is lost, stolen or destroyed or damaged beyond economic repair; or
(c) by either party forthwith on giving notice in writing to the other if the other commits any material breach of any term of this agreement other than any failure by the customer to make any payment hereunder in which event the provisions of paragraph (a) above shall apply and in the case of a breach capable of being rectified shall have failed, within 30 days after the receipt of a request in writing from the other party so, to do, to rectify the breach; or
(d) by either party forthwith on giving notice in writing to the other if the other party becomes insolvent or an official liquidator appointed of it or over any part of its undertaking or assets or shall cease to carry on business.
(ii) Any termination of this agreement howsoever happened shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance intended to come into or continue in force on or after such termination.
(iii) On the termination of this agreement the customer shall be entitled to reimbursement of a pro-rata part of the Maintenance Charge paid in advance.
(i) Each party shall treat as confidential all facts/data/information obtained from the other as a result of this agreement and shall not disclose such facts/data/information to any person without the other party’s prior written consent. This clause shall not apply to any facts/information/data, which was legitimately possessed by such party prior to the signing of this agreement or which forms part of public domain or shall become so at a future date, otherwise than as a result of a breach of this clause, or which is trivial or obvious. Each party shall ensure that its employees, including sub contractors, comply with the provisions of this clause. The foregoing obligations as to confidentiality shall survive any termination of this agreement.
(ii) The customer’s obligations under clause 9(xi) to make available the information therein mentioned shall be subject to the service provider signing such confidentiality undertaking as may be required by or to protect any third party having in such information prior to the same being made available.
13. Force majeure
Neither party shall be liable for any delay in performing any of its obligations hereunder if such delay is caused by factors and/or circumstances beyond the reasonable control of the party so delaying and such party shall be entitled to a reasonable extension of time for the performance of such obligations.
(i) The service provider shall not be liable for any loss or damage sustained or incurred by the customer or any third party including, without limitation, any loss of use of the Equipment or loss of or spoiling of the customer’s programs or data resulting from any breakdown of or fault in the Equipment unless such breakdown or fault is caused by the negligence or misconduct of the service provider, its employees, agents or sub-contractors or except to the extent that such loss or damage arises from any unreasonable delay by the service provider in providing the Maintenance Services.
(ii) The customer shall indemnify the service provider on demand against, any loss destruction or damage of or damage to any property or injury to or death of any person caused by any negligent act or omission or willful misconduct of the customer, its employees, agents or sub-contractors.
(iii) The service provider shall indemnify the customer on demand against, any loss destruction or damage of or damage to any property or injury to or death of any person caused by any negligent act or omission or willful misconduct of the Service provider, its employees, agents or sub-contractors.
(iv) Notwithstanding anything contained in this agreement the service provider shall not be liable to indemnify the customer for any indirect or consequential loss whether arising from negligence, or breach of contract.
15. Entire agreement
This agreement supersedes all prior arrangements, agreements, and understandings entered between the parties relating to the subject-matter hereof. Any addition to or modification of any provision of this agreement shall be binding only if the said addition or modification be made by a written instrument signed by a duly authorized representative of each of the parties.
Except as specifically provided in this agreement, neither party shall assign or otherwise transfer this agreement or any of its rights and obligations hereunder whether in whole or in part without the prior written consent of the other.
(i) The service provider shall not, without the prior written consent of the customer, enter into any sub-contract with any person for the performance of any part of this agreement.
(ii) The service provider shall be liable for all of its obligations under this agreement notwithstanding any sub-contract by the service provider for the performance of any part of this agreement.
All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in this agreement or such other address in India as the recipient may designate by notice may be delivered personally or by express courier or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by express courier 48 hours after posting and if by facsimile transmission when dispatched.
In this agreement:
(i) reference to any statue or statutory provision shall include a reference to the statue or statutory provision as from time to time amended, extended or re-enacted;
(ii) Words importing the singular include the plural, words importing any gender include every corporate and unincorporated; and (in each case) vice versa;
(a) any reference to a party to this agreement includes a reference its successors in title and permitted assigns;
(b) the headings to the clauses are for ease of reference only and shall not affect the interpretation or construction of this agreement;
(c) nothing in this agreement shall be construed to constitute a partnership, joint-venture or agency relationship between parties.
20. Governing Law
The agreement shall be governed by and construed in accordance with the Laws of the Republic of India.
21. Dispute Settlement
Any dispute or claim arising out of or in connection with this agreement or the performance, breach or termination hereof, shall be finally settled by binding arbitration conducted in Kolkata (India) by a Panel consisting of three arbitrators, wherein one arbitrator shall be appointed by the service provider, other arbitrator shall be appointed by the customer and the third arbitrator shall be appointed jointly by the parties. The provisions of the Arbitration and Conciliation Act 1996 shall govern arbitration. The award of arbitration shall be binding and final.
If any provision of this agreement is held to be invalid, illegal or unenforceable under present or future laws, such provision shall be struck from the agreement; however such invalidity or enforceability shall not affect the remaining provisions or conditions of this agreement. The parties shall remain legally bound by the remaining terms of this agreement and shall strive to reform the agreement in a manner consistent with the original intent of the parties.
In witness whereof, each of the parties has caused this agreement to be duly executed and delivered as of the day and year first above written.
Signed for and on behalf of:
Signed for and on behalf of:
A. The Equipment
B. The Location
C. Commencement Date
Date of the Agreement
D. The Initial Period
E. The Maintenance Charge
F. Method of Payment.